Tuesday, February 4, 2025

How the 1872 National Mining Apex Law Divided Friend and Foe

By Donna Wichelman

In a recent interview for a guest blog, a friend asked which historical parameters were imposed on the writing of my historical romance, A Song of Deliverance, and where I had to fill in the gaps with my imagination. Sometimes, the truth is stranger than fiction, which, in the case of the Apex Law or what is also referred to as the "extralateral rights" law, one wonders how the national government could have passed such egregious legislation. To understand why the 1872 legislation was passed, we have to go back to the history of mining in nineteenth-century America.

The California Gold Rush did more to create western expansion across America than any other development. Once men heard about the discovery of gold, they literally "rushed" to the western territories, bringing on tens of thousands in mass migration and the demands for quicker and better transportation. People became crazed, lured by the possibility of making their fortunes. They came on steamships through Panama or around Cape Horn. Many joined wagon trains on the Overland Trail, while others built the Transcontinental Railway from New York to California.

Image by Denise Henze from Pixabay, AI Rendering of a Steam Engine on a Railroad

Image by Bishnu Sarangi from Pixabay

Some found their fortunes panning for gold along river banks. But soon, those resources dwindled, and hard rock mining, digging deep into the belly of the earth, began to take over the industry, giving rise to demands for technological advances such as the Burley Drill to better access the minerals underground, steam boilers to operate hoisting equipment down the shafts, and smelting furnaces to extract valuable metals from the ore and remove impurities. The Gilded Age was on in the West, as mine owners needed more laborers willing to work in difficult conditions.

Image by Erich Westendarp from Pixabay, AI Rendering of a Steam Boiler

Image by Vilius Kukanauskas from Pixabay Mine

As men migrated west, they soon discovered quantities of gold, silver, copper, and other metals could be found in Nevada, Colorado, Wyoming, Montana, and the Black Hills. The atmosphere was ripe for mining towns to spring up everywhere across the West as the demand for services increased--banks, food, clothes, and various other supplies necessary to survive. 

By 1872, the United States government recognized the need for regulation. Until that time, practices for open mining and prospecting on public land tended to be universal and supported by state and territorial regulation, but illegal under federal law. After the Civil War, eastern congressmen, looking for a way to pay the war debt, viewed western miners as squatters on public land and proposed the seizure of western mines to be put up for public auction. One congressman, Fernando Wood, advocated for the government to take ownership to benefit the treasury.

Image of Gold Nugget by Csaba Nagy from Pixabay

Western representatives argued that miners and prospectors promoted commerce and the settlement of new territories. A series of legislation was passed, including the "Chaffee laws" of July 26, 1866, named after Colorado Territorial representative Jerome B. Chaffee, that legalized hard rock mining on public land. Similar law was passed July 9,1870 for placer mining.

Then, on May 10, 1872, the General Mining Act of 1872 (much of which is still intact) codified the informal system of acquiring and protecting claims on federal public lands. All citizens eighteen and older have the right to locate a lode (hard rock) or placer (gravel) mining on federal lands where such land is open, which consists of 350 million acres of federal public land still today.

Mine Tailings  from the Terrible Mine Seen From I70 near Georgetown, Colorado: Donna's Gallery, June 2019

One piece of that legislation, however, became and still is a general headache for mine owners. In A Song of Deliverance, I based the feud between my hero, Stefan Maier, and the villain, Georg Töpfer, on a real feud in 1873 that took place between the Pelican Mine--owners Eli Streeter and Thomas and John McCunniff--and the Dives claim owned by John McMurdy, having purchased part interest from Thomas Burr and a deed from William Hamill. Unfortunately, the Pelican and Dives claims overlapped, and litigation ensued.


At the forefront of the Pelican-Dives case was the apex law or “
extralateral rights” one part of the 1872 National Mining Law. According to Christine Bradley in The Rise of the Silver Queen, “The right allowed the owners of a claim the exclusive right to mine a vein if the apex, or highest point, occurred within their property. The owner could follow the vein’s downward course beyond the property’s sidelines but not beyond the end lines unless [they] purchased the neighboring claims … In reality, such veins seldom existed in the mining world. Veins and ore pockets went everywhere and often surfaced in other claims.” 

Fierce feuding between the Pelican-Dives owners continued into the 1880s, resulting in hundreds of thousands of dollars in litigation fees and one murder. Ultimately, Pelican and Dives merged into one company under William Hamill’s direction.

The extralateral rights law still exists today and continues to be a source of disputes among mine owners. Regulations under this law are complicated, and the courts have to sift through the various parts of the legislation to determine whose rights are being violated. Many miners contend the law is outdated and needs to be revisited. But will the federal government move on this question? Well, it is the federal government. So, anything can happen ... or not.

Weaving history and faith into stories of intrigue and redemption grew out of Donna's love of travel, history, and literature as a young adult while attending the United World College of the Atlantic--an international college in Wales, U.K. She enjoys developing plots that show how God's love abounds even in the profoundly difficult circumstances of our lives. Her stories reflect the hunger in all of us for love, belonging, and forgiveness.

Donna was a communications professional before writing full-time. Her short stories and articles have appeared in inspirational publications. She has two indie-published romantic suspense novels, Light Out of Darkness and Undaunted Valor, in her Waldensian Series. Her Gilded Age historical romance, A Song of Deliverance, released on December 3, 2024.

Donna and her husband of forty years participate in ministry at their local church in Colorado. They love spending time with their grandchildren and bike, kayak, and travel whenever possible.

4 comments:

  1. Very interesting. My husband and I toured an old gold mining shaft in Arizona. The conditions the miners worked under were horrid. And the pay was paltry compared to the wealthy the owners gained. Thanks for sharing.

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    1. Thank you for commenting. You're right. The conditions were horrible, and many died of silicosis (lung disease). I would not want to have been a mine worker back in those days. Thankfully, conditions are better today in the mining industry, especially with technological advances, and the pay is much better as well.

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  2. Thank you for posting today. It all sounds very complex, as do most government regulations. It's not surprising that there are still issues with regulations from the 1870's,

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  3. Connie, thank you for your faithfulness in reading our posts. Yes, it is all the government regulations are very complex. Some are necessary, and thankfully, the mining industry has done a better job of regulating the industry. But some still should be overhauled to make better sense, as in the Apex Law. We'll see if anything happens in the future to make it a better law.

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